any defect in the copy within a reasonable time, and before a fresh step has been taken, (') and twenty days' delay was held too great.(2)

Indorsement on capias of day of arrest.]-" The sheriff, or other officer, to whom any writ of capias shall be directed, or who shall have the execution and return thereof, shall, within six days at least after the execution thereof, indorse on such writ the true day of the execution thereof." (3)

Form of Indorsement.

C. D. was arrested by me, S. O., by virtue of this writ, on the day of

18

S. O.

Where defendant taken after arrest.]-Immediately after the arrest, the bailiff conducts the defendant to some house named by the defendant, and not his own, or to the lock-up house, i.e., the private house of the bailiff or sheriff,(1) where the defendant may be detained until the eight days for putting in special bail have expired, or until the defendant be discharged, either because he ought never to have been arrested, or because there is some defect in the process, or because he has given a bail-bond, or because he has deposited the sum sworn to and 101. for costs, or because he has given security, or for some other sufficient reason. (5) If he refuse to go to a house of his own nomination, or going refuse to stay,() the sheriff may take him immediately to gaol; but if he consent, the sheriff must not take him to gaol until twenty-four hours after the arrest. (7) It is the bailiff's duty to inform the defendant of this right,($) and any pressure on the defendant's consent, as where to avoid being taken to gaol he signs an agreement, avoids such agreement.(") After twenty-four hours from the arrest the

(1) Edwards v. Collins, 5 Dowl. 227.

(2) Sugars v. Concannen, 5 M. & W. 30; 7 Dowl. 891. (3) Rule Pr. 81, H. T. 1853; 2 Will. 4, c. 39, s. 4.

(4) Stevens v. Jackson, 6 Taunt. 206; 1 Marsh, 469; Baker v. Davenport, 8 D &. R. 608; Houlditch v. Birch, 4 Taunt. 608.

(5) If the defendant is ill and cannot be removed, see ante, p. 599. (6) Silk v. Humphrey, 4 A. & E. 967.

() Gordon v. Laurie, 9 Q. B. 60; 32 Geo. 2, c. 28, ss. 2, 12. (Dewhurst v. Pearson, 1 Dowl. 664; 1 Cr. & M. 365; Simpson v. Renton, 5 B. & Ad. 35; Gordan v. Laurie, 9 Q. B 60.

sheriff may take the defendant to gaol, though this is not generally done until the eighth day, being the last day for putting in bail.(1)

Sheriff's fees upon the arrest.]-The fees payable to the sheriff on the arrest will be stated at the end of the next chapter.

Remaining in custody.]-The defendant, when arrested, "shall remain in custody until he shall have given a bail-bond to the sheriff, or shall have made deposit of the sum indorsed on such writ of capias, together with 101. for costs, according to the present practice of the superior courts."(2)

(1) See Planch v. Anderson, 5 T. R. 37; Williams v. Mostyn, 4 M. & W. 145; 7 Dowl. 38.

(2) 1 & 2 Vict. c. 110, s. 4.

CHAPTER XVI.

BAIL-PROCEEDINGS AFTER THE ARREST.

1. Discharge of defendant on appli- | 6. Proceedings after the discharge,

1. Discharge of Defendant on Application to a Judge.

In what cases.]-If the defendant is privileged on any of the grounds mentioned ante, p. 782, at the time of his arrest, or if the privilege accrues to him after arrest, as by becoming a peer, he is entitled at any stage of the action to make an application to a judge, or the court, for his discharge or other relief. (1) But if the privilege is doubtful, the defendant will not be discharged, but he will be left to sue out a writ of privilege, when he may plead it in abatement. (2) The defendant will be discharged if he has been arrested without any affidavit to hold to bail previously made, or where such affidavit is not filed with the proper officer, (3) or where it is

(1) Trinder v. Shirley, 1 Doug. 45, See Phillips v. Wellesley, 1 Dowl. 9.

(2) As to which, see "Tidd's Pr. Forms;" Luntley v. Battine, 2 B. & Ald. 234. See, as to privilege, when committed by County Court for contempt, Ex parte Dakins, 16 C. B. 77.

(3) Hussey v. Baskerville, 2 Wils. 225; but see Knowles v. Stevens,

defective in not stating a cause of action or a ground of absconding, (1) or where it varies from the declaration as to the cause of action, (2) or is otherwise defective,(") or where, after making the affidavit, and before the arrest, the plaintiff received part of the debt, and the balance was under 20l. ;(1) but giving a bail-bond without being arrested is a waiver of any objection to the affidavit, (5) and so is a request of plaintiff to accept particular persons as bail. () So he may be discharged where there are material irregularities in the writ of capias.() Where the defendant had not been served with a copy of the writ of summons, the court granted a rule to show cause why he should not be discharged in four days unless served with such copy.() And where the plaintiff does not declare in time, the defendant is not entitled to be discharged, but he may have judgment of non pros.(")

When and how.]-"It shall be lawful for any person arrested upon writ of capias to apply, at any time after such arrest, to a judge of one of the superior courts at Westminster, or to the court in which the action shall have been commenced, for an order or rule on the plaintiff in such action to show cause why the person arrested should not be discharged out of custody, and it shall be lawful for such judge or court to make absolute or discharge such order or rule, and to direct the costs of the application to be paid by either party, or to make such other order herein as to such judge or court shall seem fit, provided that any such order made by a judge may be discharged or varied by the court on application made thereto by either party dissatisfied with such order."(10) Where the application for discharge is made on the ground of an irregularity, it should be made promptly, i. e., in general before the time for putting in bail has expired, (1) or at all events before the bail is perfected, (12) or

(1) Bateman v. Dunn, 7 Dowl. 105; Graham v. Sandrinelli, 16 M. & W. 191.

(2) Naylor v. Eager, 2 Y. & J. 90; see Green v. Elgie, 3 B. & Ad. 437.

(3) Brackenbury v. Needham, 1 Dowl. 439.

(4) Shore v. Cunningham, 1 Dowl. 662.

(5) Norton v. Danvers, 7 T. R. 375.

(6) Mammatt v. Matthew, 2 Dowl. 797; 4 M. & Sc. 356.

(7) See ante, p. 787.

(8) Brook v. Snell, 8 Dowl. 371.

(9) Turner v. Parker, 2 D. & L. 444.

(16) 1 & 2 Vict. c. 110, s. 6.

(11) Fownes v. Stokes, 4 Dowl. 125; Tucker v. Colegate, 1 Dow].

574; 2 C. & J. 489; Firley v. Rallett, 2 Dowl. 208.

(12) Jones v. Price, 1 East, 81.

put in,(1) or before obtaining time to put in bail, (2) or before paying money into court in lieu thereof; (3) but if the affidavit is a nullity, as where it is sworn before a person having no authority to take it,() or where it is substantially bad, (3) or untrue as to the intention to abscond, the application may be made at any time during the action. (6)

Form of application.]-If the order has been irregularly obtained, the application should be to set aside the order and writ.(') Where materials are brought before the judge or a court which were not before the judge who made the order to arrest, the application should be to discharge the defendant and deliver up the bail-bond to be cancelled, and for the money deposited to be returned, as the case may be.($) So if the ground is, that the affidavit is defective.()

Affidavit on application.]-Upon an application to the court to rescind a judge's order to hold to bail, no other affidavit can, in general, be used than those which were before the judge when he made the order. Thus, the defendant cannot produce affidavits to show that the plaintiff has no cause of action, or defendant did not intend to leave the country; but, on an application to discharge the defendant out of custody, fresh affidavits may be served, even though there has been an unsuccessful application to a judge at chambers.(10) Where the ground of application is that defendant did not intend to abscond, he should in his affidavit distinctly set forth facts which negative such intention, and not merely deny it generally.(") Where the plaintiff's affidavit

(1) D'Argent v. Vivant, 1 East, 330; Reeves v. Hudker, 2 C. & J. 44; 2 Tyr. 161.

() Moore v. Stockwell, 6 B. & C. 769; 9 D. & R. 124; Holliday V. Lawes, 3 Bing. N. C. 541.

(3) Green v. Glasbrooke, 1 Bing. N. C. 516; 1 Sc. 402.

(1) Sharpe v. Johnson, 2 Bing. N. C. 246; 2 Sc. 405; 4 Dowl. 354. () Morgan v. Baylis, 3 Dowl. 117.

Walker v. Lamb, 9 Dowl. 131; but see Sugars v. Concannen, 7 Dowl. 891; 5 M. & W. 30.

(7) Hopkins v. Salembier, 7 Dowl. 493; 5 M. & W. 423. See Bullock v. Jenkins, 1 L. M. & P. 645.

(8) Ibid.; Burness v. Guiranovich, 4 Exch. 520 ; Pegler v. Hislop, 1 Exch. 437.

(9) Gadsder v. McLean, 9 C. B. 283.

(16) Bullock v. Jenkins, 1 L. M. & P. 645.

(1) Walker v. Lamb, 9 Dowl. 124; Robinson v. Gardner, 7 Dowl.